When a loved one dies, you may assume the long, arduous, and expensive probate process lies ahead. But that may not be the case, even if your loved one has a will.
In general, probate is the legal process of gathering a deceased person’s assets and distributing them. A person’s will provides instructions on how to divvy up his or her assets. However, the executor of the estate cannot just automatically start doing what the will says.
He or she needs to prove that the will is valid. That is called “probating a will” and involves both authenticating the will and approving the executor.
Now your next question might be, do all wills have to go through probate in Texas? Today, we will answer that for you.
Covered in this article:
- Do I Have to Probate a Will in Texas
- What is the Probate Process in Texas
- What Assets Benefit from Probate in Texas
- Types of Probate in Texas
- Can I Avoid Probate Even if There is a Will?
- Types of Assets Exempt from Probate
- How Long Do You Have to Probate a Will in Texas?
- What Happens if I Do not Probate the Will?
- Is it Best to Get an Attorney Involved?
- Do You Qualify for Probate?
Do I Have to Probate a Will in Texas?
There is no general requirement that all wills go through probate in Texas. However, if the decedent dies and leaves a will, you can only implement its provisions through probate.
If the decedent did not title or structure his or her property in such a way to avoid probate, then there is no way for the beneficiaries to receive their inheritance without probate.
To administer the decedent’s estate, you have to go through probate to transfer probate assets. That would include any property owned solely in the decedent’s name that does not have any sort of beneficiary designation.
What is the Probate Process in Texas?
Although probate looks different for every estate, here are the general tasks involved in filing for probate in Texas:
- File a petition to probate the estate:
- Attend a hearing in probate court;
- Prove the authenticity of the will, if applicable;
- Identify and value the decedent’s assets;
- Notify creditors and beneficiaries;
- Pay off the decedent’s debts;
- File final tax returns; and
- Distribute the remaining assets to the beneficiaries.
What Assets Benefit from Probate in Texas
When determining which assets are subject to probate, it’s generally understood that in Texas, probate assets typically include:
- Personal Property
- Bank Accounts
- Investments
- Real Estate
- Life insurance policies that the estate is named the beneficiary
Types of Probate in Texas
In Texas, there are several types of probate proceedings, including:
- Independent Administration: This is the most common type of probate in Texas. It allows the executor or administrator to manage the estate without court supervision, with some exceptions.
- Dependent Administration: In this type of probate, the court oversees the administration of the estate more closely. The executor or administrator must seek court approval for certain actions.
- Muniment of Title: This is a simplified probate process that is exclusive to the State of Texas and is available when the only reason for probate is to transfer title to real property. It does not involve appointing an executor or administrator.
- Small Estate Affidavit: If the estate is worth $75,000 or less, not including the value of a homestead, the heirs may use a small estate affidavit to transfer assets without formal probate.
- Determination of Heirship: When there is no will, this proceeding determines who the deceased person’s heirs are under Texas law.
- Will Contest: If there are disputes regarding the validity of a will, interested parties may contest the will in probate court.
Can I Avoid Probate Even If There Is a Will?
There are instances where you can avoid probate even if the decedent has a will. If there are no assets in the estate, you do not have to go through probate.
For example, if all of the decedent’s property is held in a revocable living trust, there is no need for probate since the property is distributed according to the terms of the trust. You can also avoid probate if the estate consists entirely of community property and non-probate assets.
Types of Assets Exempt from Probate
Regardless of whether the deceased person left a valid will, you do not have to go through probate if the estate is made up of only non-probate assets. Non-probate assets are assets that either have a named beneficiary or are jointly titled. Here are some common types of non-probate assets:
- Property owned by “joint tenants with rights of survivorship”;
- “Pay on Death” (POD) or “Transfer on Death” (TOD) accounts;
- Life insurance policies;
- Retirements accounts;
- Trust assets; and
- Life estate or TOD real property.
Without going through probate, these assets automatically transfer at death to the named beneficiary or joint owner. The title, deed, or TOD supersedes any contrary beneficiary designation made under the decedent’s will.
How Long Do You Have to Probate a Will in Texas?
You have four years from the decedent’s death to file the probate paperwork. If you miss the deadline, typically, a judge will not allow you to probate the will and it becomes invalidated. However, there are some narrow exceptions to this rule. These may include:
- Minor Beneficiaries or Heirs: If the beneficiaries or heirs of the estate are minors (individuals under the age of 18), the four-year probate deadline might not apply until these beneficiaries reach age 18, also called the age of majority. In such cases, the clock for the probate deadline might start ticking from the date they come of age, rather than the decedent’s death.
- Incapacitated Individuals: When a beneficiary or heir is legally incapacitated, such as due to a disability, mental illness, or other factors that prevent them from managing their own affairs, the probate deadline might be extended. The probate process can be delayed until the incapacitated individual’s legal capacity is restored or until a suitable guardian or conservator is appointed to represent their interests.
- Fraud, Misrepresentation, or Undue Influence: If there is evidence of fraud, misrepresentation, or undue influence surrounding the execution of the will, the probate deadline might be extended. Such situations could lead to a challenge against the validity of the will, allowing the probate process to proceed even after the four-year timeframe has elapsed.
- Discovery of Assets: In cases where previously undiscovered assets of the estate are located after the four-year deadline, the court might grant an extension to the probate timeline. This is to ensure that all assets are properly accounted for and distributed according to the decedent’s wishes.
- Creditor Claims and Debt Resolution: If there are outstanding creditor claims against the estate, the probate process might be extended to allow for the resolution of these claims before distributing the estate’s assets. This ensures that creditors are given the opportunity to seek satisfaction of their debts from the estate.
- Unforeseen Circumstances: In some instances, unforeseen circumstances beyond the control of the beneficiaries or executors might justify an extension of the probate deadline. These circumstances could include legal disputes, natural disasters, health or personal challenges of the executor or other events that impede the timely completion of the probate process.
What Happens If I Do Not Probate the Will?
If you do not submit the will into probate or miss the filing deadline, the probate court will treat the decedent’s will as if it never existed. Then, the decedent’s property will eventually be distributed according to Texas intestate succession law.
Under intestate law, the state decides who will inherit the property. This may go completely against what the decedent originally intended in his or her will and cause intense conflict among family members.
Is It Best to Get an Attorney Involved?
If you are unsure whether your loved one’s will must go through probate, consult with a Texas probate attorney. We understand that probating a will may not be first on the priority list after a loved one’s passing.
In fact, we encourage you to take the time to grieve and process your loss before handling the distribution of the estate.
At Robbins Estate Law, we can answer your probate questions and prepare you for the process if necessary. We will help you complete the paperwork, file it with the court, and pay the court fees. Contact us today so we can discuss how we can best serve you, or call our office here.
Do you qualify for probate?
Fill out our quick questionnaire to determine if you need probate, what type of probate you may need, and estimated fees.
Related Blogs
- What Happens if a Will is Not Probated?
- How to Probate a Will in Texas Without a Lawyer?
- When is Probate Necessary in Texas?
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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